The power of eminent domain does not depend for its existence on a specific grant in the constitution.

G.R. No. L-15870 December 3, 1919

VISAYAN REFINING COMPANY, DEAN C. WORCESTER, and FRED A. LEAS, petitioners,
vs.
HON. MANUEL CAMUS, Judge of the Court of First Instance of the Province of Rizal and HON. QUINTIN PAREDES, Attorney-General of the Philippine Islands, respondents.

Kincaid and Perkins for petitioners.
Assistant Attorney-General Reyes for respondents.

STREET, J.:

This is an original petition, directed to the Supreme Court, containing an alternative prayer for a writ of certiorari or prohibition, as the facts may warrant, to stop certain condemnation proceedings instituted by the Government of the Philippine Islands, and now pending in the Court of First Instance of the Province of Rizal. The respondents have interposed what is called an answer, but which is in legal effect merely a demurrer, challenging the sufficiency of the allegations of the petition. The matter having been submitted upon oral argument, the cause is now before us for the decision of the question thus presented.

It appears that upon September 13, 1919, the Governor-General directed the Attorney-General to cause condemnation proceedings to be begun for the purpose of expropriating a tract of land of an area of about 1,100,463 square meters, commonly known as the site of Camp Tomas Claudio. Said land is located in the municipality of Parañaque, Province of Rizal, and lies along the water front of Manila Bay, a few miles south of the city of Manila. It is stated in communication of the Governor-General that the property in question is desired by the Government of the Philippine Islands for military and aviation purposes.

In conformity with the instructions of the Governor-General, condemnation proceedings were begun by the Attorney-General on September 15, 1919, by filing a complaint in the name of the Government of the Philippine Islands in the Court of First Instance of the Province of Rizal. Numerous persons are named in the complaint as defendants because of their supposed ownership of portions of the property intended to be expropriated. In the list of persons thus impleaded appear the names of the three petitioners herein, namely, the Visayan Refining Co., Dean C. Worcester, and Fred A. Leas, who are severally owners of different portions of the property in question.

In the communication of the Governor-General, the Attorney-General was directed immediately upon filing the complaint to ask the court to give the Government the possession of the land to be expropriated, after the necessary deposit should be made as provided by law. Accordingly in the complaint itself the Attorney-General prayed the court promptly and provisionally to fix the sum of P600,000 as the total value of the property and to put the Government in immediate possession when said sum should be placed at the disposition of the court. An order was accordingly made on September 15, 1919, by the Honorable Judge Manuel Camus, of the Court of First Instance of the Province of Rizal, fixing the value of the property provisionally at the amount stated and ordering that the plaintiff be placed in possession, it being made to appear that a certificate of deposit for the amount stated had been delivered to the provincial treasurer.

At this stage of the proceedings in the Court of First Instance the three respondents already mentioned, to wit, the Visayan Refining Co., Dean C. Worcester, and Fred A. Leas, interposed a demurrer, questioning the validity of the proceedings on the ground that there is no Act of the Philippine Legislature authorizing the exercise of the power of eminent domain to acquire land for military or aviation purposes.

Contemporaneously with the filing of their demurrer, the same parties moved the Court of First Instance to revoke its order of September 15, giving the plaintiff provisional possession. This motion is based substantially on the same ground as the demurrer, that is, the lack of legislative authority for the proposed expropriation, but it contains one additional allegation to the effect that the deposit in court of the sum of P600,000, had been made without authority of law. In support of this contention it was shown, by means of an informal communication from the Insular Auditor, that the money in question had been taken from the unexpended balance of the funds appropriated by Acts Nos. 2748 and 2785 of the Philippine Legislature for the use of the Militia Commission. This appropriation showed, upon the date said deposit of P600,000 was made, an unexpended balance of P1,144,672.83.

On October 3, 1919, the Judge of the Court of First Instance overruled the demurrer interposed by the three parties mentioned and denied their motion to vacate the order granting possession to the Government. The present proceeding was thereupon instituted in this Court in the manner and for the purpose already stated.

General authority to exercise the power of eminent domain is expressly conferred on the Government of the Philippine Islands, as now constituted by section 63 of the Philippine Bill, which reads as follows:

That the Government of the Philippine Islands is hereby authorized, subject to the limitation and conditions prescribed in this Act to acquire, receive, hold, maintain, and convey title to real and personal property, and may acquire real estate for public uses by the exercise of the right of eminent domain. (Act of Congress of July 1, 1902.)

Section 3 of the Jones Act contains the further provision that "private property shall not be taken for public use without just compensation." In addition to this there is found in the same section the familiar provision, already expressed in section 5 of the Philippine Bill, that no law shall be enacted which shall deprive any person of property without due process of law, or deny any person the equal protection of the laws. (Acts of Congress of August 29, 1916, sec. 3.)

Section 64 of the Administrative Code of the Philippine Islands (Act No. 2711) expressly confers on the Government General the power, among others:

To determine when it is necessary or advantageous to exercise the right of eminent domain in behalf of the Government of the Philippine Islands; and to direct the Attorney-General, where such at is deemed advisable, to cause the condemnation proceedings to be begun in the court having proper jurisdiction.

The procedural provisions relative to the conduct of expropriation proceedings are contained in section 241 to 253, inclusive, of the Code of Civil Procedure, supplemented as they are by various later Acts of the Legislature. Among the salient features of the scheme of expropriation thus created are these: (1) If the court is of the opinion that the right of expropriation exists, three commissioners are appointed to hear the parties, view the premises, and assess the damages to be paid for the condemnation (sec. 243 Code Civ. Proc.); (2) after hearing the evidence submitted by the parties and assessing the damages in the manner prescribed by law (sec. 244), the commissioners make their report to the court, setting forth all their proceedings; and it is expressly declared that "none of their proceedings shall be effectual to bind the property or the parties until the court shall have accepted their report and rendered judgment in accordance with its recommendations" (sec. 245); (3) the court then acts upon the report, accepting the same in whole or in part, or rejecting, recommitting, or setting aside the same, as it sees fit (sec. 246).

It is further declared in section 246 that —

The court . . . may make such final order and judgment as shall secure to the plaintiff the property essential to the exercise of his rights under the law, and to the defendant just compensation for the land so taken; and the judgment shall require payment of the sum awarded as provided in the next section (i.e., sec. 247) before the plaintiff can enter upon the ground and appropriate it to the public use.

Sections 247 and 251 of the same Code are of sufficient importance in this connection to warrant quotation in their entirety. They are as follows:

SEC. 247. Rights of Plaintiff After the Judgment. — Upon payment by the plaintiff to the defendant of compensation as fixed by the judgment, or after tender to him of the amount so fixed and payment of the costs, the plaintiffs shall have the right to enter in and upon the land so condemned, to appropriate the same to the public use defined in the judgment. In case the defendant and his attorney absent themselves from the court or decline to receive the same, payment may be made to the clerk of the court for him, and such officer shall be responsible on his bond therefor and shall be compelled to receive it."

SEC. 251. Final Judgment, Its Record and Effect. — The record of the final judgment in such action shall state definitely, by meters and bounds and adequate description, the particular land or interest in land condemned to the public use, and the nature of the public use. A certified copy of the record of the judgment shall be recorded in the office of the registrar of deeds for the province in which the estate is situated, and its effect shall be to vest in the plaintiff for the public use stated the land and estate so described.

The provisions which deal with the giving of immediate possession when the Government of the Philippine Islands is the plaintiff are found in Act No. 2826, which is in part as follows:

SEC. 2. When condemnation proceedings are instituted by or in favor of the Insular Government . . . in any competent court of the Philippines, the plaintiff shall be entitled to enter immediately upon the land covered by such proceedings, after depositing with the provincial treasurer the value of said land in cash, as previously and promptly determined and fixed by the competent court, which money the provincial treasurer shall retain subject to the order and final decision of the court: Provided, however, That the court may permit that in lieu of cash, there may be deposited with the provincial treasurer a certificate of deposit of any depository of the Government of the Philippine Islands, payable to the provincial treasurer on sight, for the sum ordered deposited by the court. The certificate and the sums represented by it shall be subject to the order and final decision of the court, and the court shall have authority to place said plaintiff in possession of the land, upon such deposit being made, by the proper orders and a mandate, if necessary.

SEC. 3. . . . Upon the payment by the plaintiff to the defendants of the compensation awarded by the sentence, or after the tender of said sum to the defendants, and the payment of the costs, or in case the court orders the price to be paid into court, the plaintiff shall be entitled to appropriate the land so condemned to the public use specified in the sentence. In case payment is made to the court, the clerk of the same shall be liable on his bond for the sum so paid and shall be obliged to receive the same.

In connection with the foregoing provisions found in laws enact under the American regime is to be considered the following provision of the Civil Code:

ART. 349. No one may be deprived of his property unless it be by competent authority for some purpose of proven public utility and after payment of the proper compensation.

Unless this requisite has been complied with, it shall be the duty of the court to protect the owner of such property in its possession or to restore its possession to him, as the case may be.

Taken together the laws mentioned supply a very complete scheme of judicial expropriation, deducing the authority from its ultimate source in sovereignty, providing in detail for the manner of its exercise, and making the right of the expropriator finally dependent upon payment of the amount awarded by the court.

As has already been indicated the petition before us proceeds on the idea that the expropriation proceedings in question cannot be maintained by the Philippine Government in the absence of a statute authorizing the exercise of the power of eminent domain for military and aviation purposes; and while it is not urged that a special legislative Act must be passed every time any particular parcel of property is to be expropriated, it is
claimed — and this really amounts to the same thing — that the Government cannot institute and prosecute expropriation proceedings unless there is already in existence a legislative appropriation especially destined to pay for the land to be taken.

We are of the opinion that the contentions of the petitioners, in whatever way they may be understood or expressed, are not well founded. There is one point at least on which all must agree, namely, that if land can be taken by the Government for a public use at all, the use intended to be made of the land now in question, that is, for military and aviation purposes, is a public use. It is undeniable that a military establishment is essential to the maintenance of organized society, and the courts will take judicial notice of the recent progress of the military and naval arts resulting from the development of aeronautics.

The question as to the abstract authority of the Government to maintain expropriation proceedings upon the initiative of the Governor-General should not be confused with that which has reference to the necessity for a legislative appropriation. They really involve different problems and will be separately considered.

Upon the first, we are of the opinion that in this jurisdiction at least expropriation proceedings may be maintained upon the exclusive initiative of the Governor-General, without the aid of any special legislative authority other than that already on the statute books. Furthermore, if the Government complies with the requirements of law relative to the making of a deposit in court, provisional possession of the property may be at once given to it, just as is permitted in the case of any other person or entity authorized by law to exercise the power eminent domain. Special legislative authority for the buying of a piece of land by the Government is no more necessary than for buying a paper of pain; and in the case of a forced taking of property against the will of the owner, all that can be required of the government is that should be able to comply with the conditions laid down by law as and when those conditions arise.

The contention that the authority to maintain such a proceeding cannot be delegated by the Legislature to the Chief Executive, is in our opinion wholly erroneous and apparently has its basis in a misconception of fundamentals. It is recognized by all writers that the power of eminent domain is inseparable from sovereignty being essential to the existence of the State and inherent in government even in its most primitive forms. Philosophers and legists may differ as to the grounds upon which the exercise of this high power is to be justified, but no one can question its existence. No law, therefore, is ever necessary to confer this right upon sovereignty or upon any government exercising sovereign or quasi-sovereign powers.

As is well said by the author of the article on Eminent Domain in the encyclopædic treaties Ruling Case Law.

The power of eminent domain does not depend for its existence on a specific grant in the constitution. It is inherent in sovereignty and exists in a sovereign state without any recognition of it in the constitution. The provisions found in most of the state constitutions relating to the taking of property for the public use do not by implication grant the power to the government of the state, but limit a power which would otherwise be without limit. (10, R. C. L., pp. 11, 12.)

In other words, the provisions now generally found in the modern laws of constitutions of civilized countries to the effect that private property shall not be taken for public use without compensation have their origin in the recognition of a necessity for restraining the sovereign and protecting the individual. Moreover, as will be at once apparent, the performance of the administrative acts necessary to the exercise of the power of eminent domain in behalf of the state is lodged by tradition in the Sovereign or other Chief Executive. Therefore, when the Philippine Legislature declared in section 64 of the Administrative Code, that the Governor-General, who exercises supreme executive power in these Islands (sec. 21, Jones Act), should be the person to direct the initiation of expropriation proceedings, it placed the authority exactly where one would expect to find it, and we can conceive of no ground upon which the efficacy of the statute can reasonably be questioned.

We would not of course pretend that, under our modern system of Government, in which the Legislature plays so important a role, the executive department could, without the authority of some statute, proceed to condemn property for its own uses; because the traditional prerogatives of the sovereign are not often recognized nowadays as a valid source of power, at least in countries organized under republican forms of government. Nevertheless it may be observed that the real check which the modern Legislature exerts over the Executive Department, in such a matter as this, lies not so much in the extinction of the prerogative as in the fact the hands of the Executive can always be paralyzed by lack of money — something which is ordinarily supplied only by the Legislature.

At any rate the conclusion is irresistible that where the Legislature has expressly conferred the authority to maintain expropriation proceedings upon the Chief Executive, the right of the latter to proceed therein is clear. As is said by the author of the article from which we have already quoted, "Once authority is given to exercise the power of eminent domain, the matter ceases to be wholly legislative. The executive authorities may then decide whether the power will be invoked and to what extent." (10 R. C. L., p. 14.)

The power of eminent domain, with respect to the conditions under which the property is taken, must of course be exercised in subjection to all the restraints imposed by constitutional or organic law. The two provisions by which the exercise of this power is chiefly limited in this jurisdiction are found in the third section of the Jones Act, already mentioned, which among other things declares (1) that no law shall be enacted which shall deprive any person of property without due process of law and (2) that private property shall not be taken for public use without just compensation. The latter of these provisions is directly aimed at the taking of property under the exercise of the power of eminent domain; and as this requirement, in connection with the statutes enacted to make sure the payment of compensation, usually affords all the protection that the owner of property can claim, it results that the due process clause is rarely invoked by the owner in expropriation proceedings.

Nevertheless it should be noted that the whole problem of expropriation is resolvable in its ultimate analysis into a constitutional question of due process of law. The specific provisions that just compensation shall be made is merely in the nature of a superadded requirement to be taken into account by the Legislature in prescribing the method of expropriation. Even were there no organic or constitutional provision in force requiring compensation to be paid, the seizure of one's property without payment, even though intended for a public use, would undoubtedly be held to be a taking without due process of law and a denial of the equal protection of the laws.

This point is not merely an academic one, as might superficially seem. On the contrary it has a practical bearing on the problem before us, which may be expressed by saying that, if the Legislature has prescribed a method of expropriation which provides for the payment of just compensation and such method is so conceived and adapted as to fulfill the constitutional requisite of due process of law, any proceeding conducted in conformity with that method must be valid.lawphi1.net

These considerations are especially important to be borne in mind in connection with the second contention made by counsel for the petitioners, namely, that land cannot be expropriated by the Government in the absence of a legislative appropriation especially destined to pay for the land to be taken. To this question we now address ourselves; and while we bear in mind the cardinal fact that just compensation must be made, the further fact must not be overlooked that there is no organic or constitutional provision in force in these lands Islands requiring that compensation shall actually be paid prior to the judgment of condemnation.

If the laws which we have exhibited or cited in the preceding discussion are attentively examined it will be apparent that the method of expropriation adopted in this jurisdiction is such as to afford absolute assurance that no piece of land can be finally and irrevocably taken from an unwilling owner until compensation is paid. It is true that in rare instances the proceedings may be voluntarily abandoned before the expropriation is complete or the proceedings may fail because the expropriator becomes insolvent, in either of which cases the owner retains the property; and if possession has been prematurely obtained by the plaintiff in the proceedings, it must be restored. It will be noted that the title does not actually pass to the expropriator until a certified copy of the record of the judgment is recorded in the office of the register of deeds (sec. 251, Code Civ. Proc.). Before this stage of the proceedings is reached the compensation is supposed to have been paid; and the court is plainly directed to make such final order and judgment as shall secure to the defendant just compensation for the land taken. (Sec. 246, Code Civ. Proc.). Furthermore, the right of the expropriator is finally made dependent absolutely upon the payment of compensation by him. (Sec. 3, Act No. 2826; sec. 247, Code Civ. Proc.).

It will be observed that the scheme of expropriation exemplified in our statutes does not primarily contemplate the giving of a personal judgment for the amount of the award against the expropriator; the idea is rather to protect the owner by requiring payment as a condition precedent to the acquisition of the property by the other party. The power of the court to enter a judgment for the money and to issue execution thereon against the plaintiff is, however, unquestioned; and the court can without doubt proceed in either way. But whatever course be pursued the owner is completely protected from the possibility of losing his property without compensation.

When the Government is plaintiff the judgment will naturally take the form of an order merely requiring the payment of the award as a condition precedent to the transfer of the title, as a personal judgment against the Government could not be realized upon execution. It is presumed that by appearing as plaintiff in condemnation proceedings, the Government submits itself to the jurisdiction of the court and thereby waives its immunity from suit. As a consequence it would be theoretically subject to the same liability as any other expropriator. Nevertheless, the entering of a personal judgment against it would be an unnecessary, as well as profitless formality.

In the face of the elaborate safeguards provided in our procedure, it is frivolous to speculate upon the possibility that the Legislature may finally refuse to appropriate any additional amount, over and above the provisional deposit, that may be necessary to pay the award. That it may do. But the Government can not keep the land and dishonor the judgment. Moreover, in the eventuality that the expropriation shall not be consummated, the owners will be protected by the deposit from any danger of loss resulting from the temporary occupation of the land by the Government; for it is obvious that this preliminary deposit serves the double purpose of a prepayment upon the value of the property, if finally expropriated and as an indemnity against damage in the eventuality that the proceedings should fail of consummation.

It appears that the money represented by the certificate of deposit which was placed at the disposal of the lower court, pursuant to the requirements of section 2 of Act No. 2826, was taken from certain appropriations under the control of the Militia Commission, a body created by section 29 of Act No. 2715, for the purpose, among others, of advising the Governor-General upon measures relative to the organization equipment, and government of the National Guard and reserve militia. Counsel for the petitioners say that money appropriated for the purpose of the Militia Commission cannot be lawfully used to acquire the land which is now the subject of expropriation, because no authority for the exercise of the power of eminent domain is to be found in any of the Acts appropriating money for said Commission; from whence it is argued that the certificate of deposit affords no protection to the owners of property.

The point appears to be one of little general importance, and we will not multiply words over it. Suffice it to say that in our opinion the Insular Auditor was acting within his authority when he let this money out of the Insular Treasury; and being now within the control of the lower court, it will doubtless in due time be applied to the purpose for which the deposit was made.

From the foregoing discussion it is apparent that the action taken by the lower court in the condemnation proceedings aforesaid was in all respects regular and within the jurisdiction of the court. The writ prayed for in the petition before us, therefore, can not be issued. The application is accordingly denied, with costs against the petitioners.

Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.
Johnson, J., reserves the right to prepare a separate opinion.

Separate Opinions

MALCOLM, J., concurring:

I agree with the conclusion arrived at in the majority decision. I am clearly of the opinion that the alternative application for a writ of certiorari or prohibition should not be granted. An analysis into their simplest elements of the various questions presented may easily be made as follows: 1. The power of the Philippine Government in eminent domain; (2) The constitutional prohibition that (A) private property (B) shall not be taken for public use (C) without just compensation; and 3. The constitutional prohibition that no money shall be paid out of the treasury except in pursuance of an appropriation by law.

1. The power of eminent domain is expressly vested in the Government of the Philippine Islands be section 63 of the Act of Congress of July 1, 1902, commonly known as the Philippine Bill. The Philippine Legislature has, in turn by section 64 (h) of the Administrative Code of 1917, expressly delegated to the Governor-General the specific power and duty to determine when it is necessary or advantageous to exercise the right of eminent domain in behalf of the Government of the Philippine Islands. This delegation of legislative power to the Governor-General was authorized in view of the nature of eminent domain, which necessitates administrative agents for its execution, in view of the previous attitude assumed by the Judiciary with relation to similar delegations of power, and in view of the undeniable fact that the Governor-General is a part of the same Government of the Philippine Islands to which was transferred the right of eminent domain by the Congress of the United States. (See Government of the Philippine Islands vs. Municipality of Binangonan [1916], 34 Phil. 518.) When, therefore, the Governor-General directed the Attorney-General to cause condemnation proceedings to be begun in the Court of First Instance of Rizal with the object of having the Government obtain title to the site commonly known as "Camp Tomas Claudio," the Governor-General was merely acting as a mouthpiece of American sovereignty, pursuant to a delegated power transmitted by the Congress of the United States to the Government of the Philippine Islands and lodged by this latter Government in the Chief Executive. Any other holding would mean that section 64 (h) of the Administrative Code is invalid, a result to be avoided.lawphi1.net

2. In the existing Philippine Bill of Rights (last sentence, paragraph 1, section 3, Act of Congress of August 29, 1916) is a provision that "private property shall not be taken for public use without just compensation." It seems undeniable (A) that Camp Claudio was "private property," and (B) that it was being "taken for public use," namely, for military and aviation purposes. The only remaining point concerns "just compensation," which can better be discussed under our division 3.

3. Another provision of the Philippine Bill of Rights (paragraph 15, section 3, Act of Congress of August 29, 1916) is, "that no money shall be paid out of the treasury except in pursuance of an appropriation by law." The same Auditor who shall "audit, in accordance with law and administrative regulations, all expenditure of funds or property pertaining to, or held in trust, by the Government." His administrative jurisdiction is made "exclusive." The Philippine Legislature could, of course, have specifically appropriated an amount for the purchase of the Camp Claudio site just as it could have specifically enacted a law for the condemnation of such site, but instead it preferred to include in the general Appropriation Acts, under the heads of The Philippine National Guard or Philippine Militia, a large amount to be expended in the discretion of the Militia Commission, which may "use the funds appropriated for other purposes, as the efficiency of the service may require." This transfer of power of the Militia Commission, like the delegation of some of the general legislative power to the Governor-General, raises no constitutional bar. The Insular Auditor has stated that there is in the treasury over a million pesos available for the condemnation of Camp Claudio, and this decision for present purposes must be taken as final and conclusive. The six hundred thousand pesos deposit is merely the provisional determination of the value of the land by the competent court, and in no way jeopardizes the financial interests of the owners of the property. No additional security is required since the sovereign power has waived its right to be sued, has pledged the public faith, and cannot obtain title until the owners receive just compensation for their property. (See Sweet vs. Rechel [1895], 159 U. S., 380.)

In resume, therefore, the Governor-General of the Philippine Islands had the right to authorize the condemnation of this land for military and aviation purposes, and no constitutional provision has been violated. The Court of First Instance of Rizal has merely acted in strict accord with law, and its action should, consequently, be sustained.

he President of the Philippines shall exercise general supervision over local governments

G.R. No. 112497 August 4, 1994

HON. FRANKLIN M. DRILON, in his capacity as SECRETARY OF JUSTICE, petitioner,
vs.
MAYOR ALFREDO S. LIM, VICE-MAYOR JOSE L. ATIENZA, CITY TREASURER ANTHONY ACEVEDO, SANGGUNIANG PANGLUNSOD AND THE CITY OF MANILA, respondents.

The City Legal Officer for petitioner.

Angara, Abello, Concepcion, Regala & Cruz for Caltex (Phils.).

Joseph Lopez for Sangguniang Panglunsod of Manila.

L.A. Maglaya for Petron Corporation.

CRUZ, J.:

The principal issue in this case is the constitutionality of Section 187 of the Local Government Code reading as follows:

Procedure For Approval And Effectivity Of Tax Ordinances And Revenue Measures; Mandatory Public Hearings. — The procedure for approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof; Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction.

Pursuant thereto, the Secretary of Justice had, on appeal to him of four oil companies and a taxpayer, declared Ordinance No. 7794, otherwise known as the Manila Revenue Code, null and void for non-compliance with the prescribed procedure in the enactment of tax ordinances and for containing certain provisions contrary to law and public policy. ¹

In a petition for certiorari filed by the City of Manila, the Regional Trial Court of Manila revoked the Secretary's resolution and sustained the ordinance, holding inter alia that the procedural requirements had been observed. More importantly, it declared Section 187 of the Local Government Code as unconstitutional because of its vesture in the Secretary of Justice of the power of control over local governments in violation of the policy of local autonomy mandated in the Constitution and of the specific provision therein conferring on the President of the Philippines only the power of supervision over local governments. ²

The present petition would have us reverse that decision. The Secretary argues that the annulled Section 187 is constitutional and that the procedural requirements for the enactment of tax ordinances as specified in the Local Government Code had indeed not been observed.

Parenthetically, this petition was originally dismissed by the Court for non-compliance with Circular 1-88, the Solicitor General having failed to submit a certified true copy of the challenged decision. ³ However, on motion for reconsideration with the required certified true copy of the decision attached, the petition was reinstated in view of the importance of the issues raised therein.

We stress at the outset that the lower court had jurisdiction to consider the constitutionality of Section 187, this authority being embraced in the general definition of the judicial power to determine what are the valid and binding laws by the criterion of their conformity to the fundamental law. Specifically, BP 129 vests in the regional trial courts jurisdiction over all civil cases in which the subject of the litigation is incapable of pecuniary estimation, ⁴ even as the accused in a criminal action has the right to question in his defense the constitutionality of a law he is charged with violating and of the proceedings taken against him, particularly as they contravene the Bill of Rights. Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

In the exercise of this jurisdiction, lower courts are advised to act with the utmost circumspection, bearing in mind the consequences of a declaration of unconstitutionality upon the stability of laws, no less than on the doctrine of separation of powers. As the questioned act is usually the handiwork of the legislative or the executive departments, or both, it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgment of this Court in the consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and with the concurrence of the majority of those who participated in its discussion. ⁵

It is also emphasized that every court, including this Court, is charged with the duty of a purposeful hesitation before declaring a law unconstitutional, on the theory that the measure was first carefully studied by the executive and the legislative departments and determined by them to be in accordance with the fundamental law before it was finally approved. To doubt is to sustain. The presumption of constitutionality can be overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged act must be struck down.

In the case before us, Judge Rodolfo C. Palattao declared Section 187 of the Local Government Code unconstitutional insofar as it empowered the Secretary of Justice to review tax ordinances and, inferentially, to annul them. He cited the familiar distinction between control and supervision, the first being "the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter," while the second is "the power of a superior officer to see to it that lower officers perform their functions in accordance with law." ⁶ His conclusion was that the challenged section gave to the Secretary the power of control and not of supervision only as vested by the Constitution in the President of the Philippines. This was, in his view, a violation not only of Article X, specifically Section 4 thereof, ⁷ and of Section 5 on the taxing powers of local governments, ⁸ and the policy of local autonomy in general.

We do not share that view. The lower court was rather hasty in invalidating the provision.

Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for the judgment of the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of what the Code should be. He did not pronounce the ordinance unwise or unreasonable as a basis for its annulment. He did not say that in his judgment it was a bad law. What he found only was that it was illegal. All he did in reviewing the said measure was determine if the petitioners were performing their functions in accordance with law, that is, with the prescribed procedure for the enactment of tax ordinances and the grant of powers to the city government under the Local Government Code. As we see it, that was an act not of control but of mere supervision.

An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for the doing of the act. He has no judgment on this matter except to see to it that the rules are followed. In the opinion of the Court, Secretary Drilon did precisely this, and no more nor less than this, and so performed an act not of control but of mere supervision.

The case of Taule v. Santos ⁹ cited in the decision has no application here because the jurisdiction claimed by the Secretary of Local Governments over election contests in the Katipunan ng Mga Barangay was held to belong to the Commission on Elections by constitutional provision. The conflict was over jurisdiction, not supervision or control.

Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act, which provided in its Section 2 as follows:

A tax ordinance shall go into effect on the fifteenth day after its passage, unless the ordinance shall provide otherwise: Provided, however, That the Secretary of Finance shall have authority to suspend the effectivity of any ordinance within one hundred and twenty days after receipt by him of a copy thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust, excessive, oppressive, or confiscatory, or when it is contrary to declared national economy policy, and when the said Secretary exercises this authority the effectivity of such ordinance shall be suspended, either in part or as a whole, for a period of thirty days within which period the local legislative body may either modify the tax ordinance to meet the objections thereto, or file an appeal with a court of competent jurisdiction; otherwise, the tax ordinance or the part or parts thereof declared suspended, shall be considered as revoked. Thereafter, the local legislative body may not reimpose the same tax or fee until such time as the grounds for the suspension thereof shall have ceased to exist.

That section allowed the Secretary of Finance to suspend the effectivity of a tax ordinance if, in his opinion, the tax or fee levied was unjust, excessive, oppressive or confiscatory. Determination of these flaws would involve the exercise of judgment or discretion and not merely an examination of whether or not the requirements or limitations of the law had been observed; hence, it would smack of control rather than mere supervision. That power was never questioned before this Court but, at any rate, the Secretary of Justice is not given the same latitude under Section 187. All he is permitted to do is ascertain the constitutionality or legality of the tax measure, without the right to declare that, in his opinion, it is unjust, excessive, oppressive or confiscatory. He has no discretion on this matter. In fact, Secretary Drilon set aside the Manila Revenue Code only on two grounds, to with, the inclusion therein of certain ultra vires provisions and non-compliance with the prescribed procedure in its enactment. These grounds affected the legality, not the wisdom or reasonableness, of the tax measure.

The issue of non-compliance with the prescribed procedure in the enactment of the Manila Revenue Code is another matter.

In his resolution, Secretary Drilon declared that there were no written notices of public hearings on the proposed Manila Revenue Code that were sent to interested parties as required by Art. 276(b) of the Implementing Rules of the Local Government Code nor were copies of the proposed ordinance published in three successive issues of a newspaper of general circulation pursuant to Art. 276(a). No minutes were submitted to show that the obligatory public hearings had been held. Neither were copies of the measure as approved posted in prominent places in the city in accordance with Sec. 511(a) of the Local Government Code. Finally, the Manila Revenue Code was not translated into Pilipino or Tagalog and disseminated among the people for their information and guidance, conformably to Sec. 59(b) of the Code.

Judge Palattao found otherwise. He declared that all the procedural requirements had been observed in the enactment of the Manila Revenue Code and that the City of Manila had not been able to prove such compliance before the Secretary only because he had given it only five days within which to gather and present to him all the evidence (consisting of 25 exhibits) later submitted to the trial court.

To get to the bottom of this question, the Court acceded to the motion of the respondents and called for the elevation to it of the said exhibits. We have carefully examined every one of these exhibits and agree with the trial court that the procedural requirements have indeed been observed. Notices of the public hearings were sent to interested parties as evidenced by Exhibits G-1 to 17. The minutes of the hearings are found in Exhibits M, M-1, M-2, and M-3. Exhibits B and C show that the proposed ordinances were published in the Balita and the Manila Standard on April 21 and 25, 1993, respectively, and the approved ordinance was published in the July 3, 4, 5, 1993 issues of the Manila Standard and in the July 6, 1993 issue of Balita, as shown by Exhibits Q, Q-1, Q-2, and Q-3.

The only exceptions are the posting of the ordinance as approved but this omission does not affect its validity, considering that its publication in three successive issues of a newspaper of general circulation will satisfy due process. It has also not been shown that the text of the ordinance has been translated and disseminated, but this requirement applies to the approval of local development plans and public investment programs of the local government unit and not to tax ordinances.

We make no ruling on the substantive provisions of the Manila Revenue Code as their validity has not been raised in issue in the present petition.

WHEREFORE, the judgment is hereby rendered REVERSING the challenged decision of the Regional Trial Court insofar as it declared Section 187 of the Local Government Code unconstitutional but AFFIRMING its finding that the procedural requirements in the enactment of the Manila Revenue Code have been observed. No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

^#Footnotes

1 Annex "E," rollo, pp. 37-55.

2 Annex "A," rollo, pp. 27-36.

3 Rollo, p. 256.

4 Sec. 19(1).

5 Art. VIII, Sec. 4(2), Constitution.

6 Mondano v. Silvosa, 97 Phil. 143; Hebron v. Reyes, 104 Phil. 175; Tecson v. Salas, 34 SCRA 282.

7 Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

8 Sec. 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.

9 200 SCRA 512.

The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation of the Congress of the United States on the Philippines -

".... that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris, December tenth eighteen hundred and ninety eight."

Under the organic act, a “citizen of the Philippines” was one who was an inhabitant of the Philippines, and a Spanish subject on the 11^th day of April 1899. The term “inhabitant” was taken to include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899.

Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July 1902, during which period no citizenship law was extant in the Philippines. Weight was given to the view, articulated in jurisprudential writing at the time, that the common law principle of jus soli, otherwise also known as the principle of territoriality, operative in the United States and England, governed those born in the Philippine Archipelago within that period. More about this later.

In 23 March 1912, the Congress of the United States made the following amendment to the Philippine Bill of 1902 -

"Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possession of the United States, and such other persons residing in the Philippine Islands who would become citizens of the United States, under the laws of the United States, if residing therein."

With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 -

“That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequently thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such others as have since become citizens of some other country; Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States, if residing therein."

Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of some other country.

While there was, at one brief time, divergent views on whether or not jus soli was a mode of acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino citizenship -

“Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines -

“(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution

“(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands.

“(3) Those whose fathers are citizens of the Philippines.

“(4) Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship.

“(5) Those who are naturalized in accordance with law.”

Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at the time, which provided that women would automatically lose their Filipino citizenship and acquire that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the women from transmitting their Filipino citizenship to their legitimate children and required illegitimate children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new Constitution on citizenship to reflect such concerns -

“Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines:

“(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.

“(2) Those whose fathers or mothers are citizens of the Philippines.

“(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five.

“(4) Those who are naturalized in accordance with law.”

For good measure, Section 2 of the same article also further provided that –

"A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission she is deemed, under the law to have renounced her citizenship."

The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for subsection (3) thereof that aimed to correct the irregular situation generated by the questionable proviso in the 1935 Constitution.

Section I, Article IV, 1987 Constitution now provides:

“The following are citizens of the Philippines:

“(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.

“(2) Those whose fathers or mothers are citizens of the Philippines.

“(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and

“(4) Those who are naturalized in accordance with law.”

G.R. No. 132365 July 9, 1998

COMMISSION ON ELECTIONS, petitioner,

vs.

HON. TOMAS B. NOYNAY, Acting Presiding Judge, Regional Trial Court, Branch 23, Allen, Northern Samar, and DIOSDADA F. AMOR, ESBEL CHUA, and RUBEN MAGLUYOAN, respondents.

DAVIDE, JR., J.:

The pivotal issue raised in this special civil action for certiorari with mandamus is whether R.A. No. 7691 ¹ has divested Regional Trial Courts of jurisdiction over election offenses, which are punishable with imprisonment of not exceeding six (6) years.

The antecedents are not disputed.

In its Minute Resolution No. 96-3076 of 29 October 1996, the Commission on Elections (COMELEC) resolved to file an information for violation of Section 261(i) of the Omnibus Election Code against private respondents Diosdada Amor, a public school principal, and Esbel Chua and Ruben Magluyoan, both public school teachers, for having engaged in partisan political activities. The COMELEC authorized its Regional Director in Region VIII to handle the prosecution of the cases.

Forthwith, nine informations for violation of Section 261(i) of the Omnibus Election were filed with Branch 23 of the Regional Trial Court of Alien, Northern Samar, and docketed therein as follows:

a) Criminal Cases Nos. A-1439 and A-1442, against private respondents Diosdada Amor, Esbel Chua, and Ruben Magluyoan.

b) Criminal Case No. A-1443, against private respondents Esbel Chua and Ruben Magluyoan.

c) Criminal Cases Nos. A-1444 and A-1445, against private respondent Esbel Chua only;

d) Criminal Cases Nos. A-1446 to A-1449, against private respondent Diosdada Amor only.

In an Order ² issued on 25 August 1997, respondent Judge Tomas B. Noynay, as presiding judge of Branch 23, motu proprio ordered the records of the cases to be withdrawn and directed the COMELEC Law Department to file the cases with the appropriate Municipal Trial Court on the ground that pursuant to Section 32 of B.P. Blg. 129 as amended by R.A. No. 7691, ³ the Regional Trial Court has no jurisdiction over the cases since the maximum imposable penalty in each of the cases does not exceed six years of imprisonment. Pertinent portions of the Order read as follows:

[I]t is worth pointing out that all the accused are uniformly charged for [sic] Violation of Sec. 261(i) of the Omnibus Election Code, which under Sec. 264 of the same Code carries a penalty of not less than one (1) year but not more than six (6) years of imprisonment and not subject to Probation plus disqualification to hold public office or deprivation of the right of suffrage.

Sec. 31 [sic] of the Judiciary Reorganization Act of 1980 (B.P.) Blg. 129 as Amended by Rep. Act. 6691 [sic] (Expanded Jurisdiction) states: Sec. 32. Jurisdiction — Metropolitan Trial Courts, Municipal Circuit Trial Courts, Municipal Trial Courts in Criminal Cases — Except [in] cases falling within the exclusive original jurisdiction of the Regional Trial Courts and the Sandiganbayan, the Municipal Trial Courts, Metropolitan Trial Courts and the Municipal Circuit Trial Courts shall exercise:

(1) Exclusive original jurisdiction over all violations of city or municipal ordinance committed within their respective territorial jurisdiction; and

(2) Exclusive original jurisdiction over all offenses punishable with an imprisonment of not exceeding six (6) years irrespective of the amount or fine and regardless of other imposable accessory and other penalties including the civil liability arising from such offenses or predicated thereon, irrespective of time [sic], nature, value and amount thereof, Provided, However, that in offenses including damages to property through criminal negligence, they shall have exclusive original jurisdiction thereof.

In light of the foregoing, this Court has therefore, no jurisdiction over the cases filed considering that the maximum penalty imposable did not exceed six (6) years.

The two motions ⁴ for reconsideration separately filed by the COMELEC Regional Director of Region VIII and by the COMELEC itself through its Legal Department having been denied by the public respondent in the Order of 17 October 1997, ⁵ the petitioner filed this special civil action. It contends that public respondent "has erroneously misconstrued the provisions of Rep. Act No. 7691 in arguing that the Municipal Trial Court has exclusive original jurisdiction to try and decide election offenses" because pursuant to Section 268 of the Omnibus Election Code and this Court's ruling in "Alberto [sic] vs. Judge Juan Lavilles, Jr.," Regional Trial Courts have the exclusive original jurisdiction over election offenses.

On 17 February 1998, we required the respondents and the Office of the Solicitor General to comment on the petition.

In its Manifestation of 5 March 1998, the Office of the Solicitor General informs us that it is "adopting" the instant petition on the ground that the challenged orders of public respondent "are clearly not in accordance with existing laws and jurisprudence."

In his Manifestation of 12 March 1998, public respondent avers that it is the duty of counsel for private respondents interested in sustaining the challenged orders to appear for and defend him.

In their Comment, private respondents maintain that R.A. No. 7691 has divested the Regional Trial Courts of jurisdiction over offenses where the imposable penalty is not more than 6 years of imprisonment; moreover, R.A. 7691 expressly provides that all laws, decrees, and orders inconsistent with its provisions are deemed repealed or modified accordingly. They then conclude that since the election offense in question is punishable with imprisonment of not more than 6 years, it is cognizable by Municipal Trial Courts.

We resolved to give due course to the petition.

Under Section 268 of the Omnibus Election Code, Regional Trial Courts have exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the Code except those relating to the offense of failure to register or failure to vote. ⁶ It reads as follows:

Sec. 268. Jurisdiction of courts. — The regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases.

Among the offenses punished under the Election Code are those enumerated in Section 261 thereof. The offense allegedly committed by private respondents is covered by paragraph (i) of said Section, thus:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense:

(i) Intervention of public officers and employees. — Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police forces, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.

Under Section 264 of the Code the penalty for an election offense under the Code, except that of failure to register or failure to vote, is "imprisonment of not less than one year but not more than six years" and the offender shall not be subject to probation and shall suffer disqualification to hold public office and deprivation of the right of suffrage.

Section 32 of B.P. Blg. 129 as amended by Section 2 of R.A. No. 7691, provides as follows:

Sec. 32. Jurisdiction of Metropolitan Trial Court, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. — Except in cases falling within the exclusive original jurisdiction of Regional Trial Court and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:

(1) Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction; and

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, That in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof.

We have explicitly ruled in Morales v. Court of Appeals ⁷ that by virtue of the exception provided for in the opening sentence of Section 32, the exclusive original jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts does not cover those criminal cases which by specific provisions of law fall within the exclusive original jurisdiction of Regional Trial Courts and of the Sandiganbayan, regardless of the penalty prescribed therefor. Otherwise stated, even if those excepted cases are punishable by imprisonment of not exceeding six (6) years (i.e., prision correccional, arresto mayor, or arresto menor), jurisdiction thereon is retained by the Regional Trial Courts or the Sandiganbayan, as the case may be.

Among the examples cited in Morales as falling within the exception provided for in the opening sentence of Section 32 are cases under (1) Section 20 of B.P. Blg. 129; (2) Article 360 of the Revised Penal Code, as amended; (3) the Decree on Intellectual Property; ⁸ and (4) the Dangerous Drugs Act of 1972, ⁹ as amended.

Undoubtedly, pursuant to Section 268 of the Omnibus Election Code, election offenses also fall within the exception.

As we stated in Morales, jurisdiction is conferred by the Constitution or by Congress. Outside the cases enumerated in Section 5(2) of Article VIII of the Constitution, Congress has the plenary power to define, prescribe, and apportion the jurisdiction of various courts. Congress may thus provide by law that a certain class of cases should be exclusively heard and determined by one court. Such law would be a special law and must be construed as an exception to the general law on jurisdiction of courts, namely, the Judiciary Act of 1948, as amended, and the Judiciary Reorganization Act of 1980. R.A. No. 7691 can by no means be considered as a special law on jurisdiction; it is merely an amendatory law intended to amend specific sections of the Judiciary Reorganization Act of 1980. Hence, R.A. No. 7691 does nut have the effect of repealing laws vesting upon Regional Trial Courts or the Sandiganbayan exclusive original jurisdiction to hear and decide the cases therein specified. That Congress never intended that R.A. No. 7691 should repeal such special provisions is indubitably evident from the fact that it did not touch at all the opening sentence of Section 32 of B.P. Blg. 129 providing for the exception.

It is obvious that respondent judge did not read at all the opening sentence of Section 32 of B.P. Blg. 129, as amended. It is thus an opportune time, as any, to remind him, as well as other judges, of his duty to be studious of the principles of law, ¹⁰ to administer his office with due regard to the integrity of the system of the law itself, ¹¹ to be faithful to the law, and to maintain professional competence. ¹²

Counsel for petitioner, Atty. Jose P. Balbuena, Director IV of petitioner's Law Department, must also be admonished for his utter carelessness in his reference to the case against Judge Juan Lavilles, Jr. In the motion for Reconsideration ¹³ he filed, with the court below, Atty. Balbuena stated:

As a matter of fact, the issue on whether the Regional Trial Court has exclusive jurisdiction over election offenses is already a settled issue in the case of Alberto Naldeza -vs- Judge Juan Lavilles, Jr., A.M. No. MTJ-94-1009, March 5, 1996, where the Supreme Court succinctly held:

A review of the pertinent provision of law would show that pursuant to Sec. 265 and 267 of the Omnibus Election Code, the COMELEC, has the exclusive power to conduct preliminary investigation of all election offenses punishable under the Code and the RTC shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the same. The Metropolitan, or MTC, by way of exception exercises jurisdiction only on offenses relating to failure to register or to vote. Noting that these provisions stand together with the provisions that any election offense under the code shall be punishable with imprisonment of one (1) year to six (6) years and shall not be subject to probation (Sec. 263, Omnibus Election Code), we submit that it is the special intention of the Code to vest upon the RTC jurisdiction over election cases as a matter of exception to the general provisions on jurisdiction over criminal cases found under B.P. 129 by RA 7691 does not vest upon the MTC jurisdiction over criminal election offenses despite its expanded jurisdiction. (Emphasis ours)

Also, in this petition, Atty. Balbuena states:

16. This Honorable Supreme Court, in the case of "Alberto -vs- Judge Juan Lavilles, Jr.," 245 SCRA 286 involving the same issue of jurisdiction between the lower courts and Regional Trial Court on election offenses, has ruled, thus:

With respect to the other charges, a review of the Pertinent Provision of Law would show that pursuant to Section 265 and 267 of the Omnibus Election Code the Comelec has the power to conduct preliminary investigations all election offenses punishable under the code and the Regional Trial Court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the same. The Metropolitan Trial Court, by way of exception exercise jurisdiction only on offenses relating to failure to register or to vote. Noting that these provisions stands together with the provision that any election offense under the code shall be punishable with imprisonment for one (1) year to six (6) years and shall not be subject to probation (Section 264, Omnibus Election Code). We submit that it is the special intention of the code to vest upon the Regional Trial Court jurisdiction over election cases as matter of exemption to the provisions on jurisdiction over criminal cases found under B.P. Reg. 129, as amended. Consequently, the amendment of B.P. Reg. 129 by Republic Act. No. 7691 does not vest upon the MTC jurisdiction over criminal election offenses despite its expanded jurisdiction.

If Atty. Balbuena was diligent enough, he would have known that the correct name of the complainant in the case referred to is neither Alberto Naldeza as indicated in the motion for reconsideration nor Alberto alone as stated in the petition, but ALBERTO NALDOZA. Moreover, the case was not reported in volume 245 of the Supreme Court Reports Annotated (SCRA) as falsely represented in the paragraph 16 of the petition, but in volume 254 of the SCRA.

Worse, in both the motion for reconsideration and the petition, Atty. Balbuena deliberately made it appear that the quoted portions were findings or rulings, or, put a little differently, our own words. The truth is, the quoted portion is just a part of the memorandum of the Court Administrator quoted in the decision.

Rule 10.02 of Canon 10 of the Code of Professional Responsibility ¹⁴ mandates that a lawyer shall not knowingly misquote or misrepresent the text of a decision or authority.

IN VIEW OF ALL THE FOREGOING, the instant petition is GRANTED. The challenged orders of public respondent Judge Tomas B. Noynay of 25 August 1997 and 17 October 1997 in Criminal Cases Nos. A-1439 and A-1442 to A-1449 are SET ASIDE. Respondent Judge is DIRECTED to try and decide said cases with purposeful dispatch and, further, ADMONISHED to faithfully comply with Canons 4 and 18 of the Canons of Judicial Ethics and Rule 3.01, Canon 3 of the Code of Judicial Conduct.

Atty. Jose P. Balbuena is ADMONISHED to be more careful in the discharge of his duty to the court as a lawyer under the Code of Professional Responsibility.

No costs.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur.

# Footnotes

1 Entitled An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, Amending for the Purpose Batas Pambansa Blg. 129, Otherwise Known as the "Judiciary Reorganization Act of 1980."

2 Rollo, 13-15.

3 Erroneously cited as "Rep. Act. 6691."

4 Rollo, 16-17; 18-22.

5 Id., 24-28.

6 The penalty for the offense of failure to register or failure to vote is fine of P100.00 plus disqualification to run for public office in the next succeeding election following his conviction or to be appointed to a public office for a period of one year following his conviction. However, the provisions of the Omnibus Election penalizing failure to register and failure to vote [Sec. 261, paragraph (y), subparagraph (1) and paragraph (z), subparagraph (1), respectively] were expressly repealed by Section 17 of Executive Order No. 134 promulgated on 27 February 1987 by then President Corazon C. Aquino.

7 G.R. No. 126623, 12 December 1997.

8 P.D. No. 49, as amended.

9 R.A. No. 6425, as amended.

10 Canon 4, Canons of Judicial Ethics.

11 Canon 18, id.

12 Rule 3.01, Canon 3, Code of Judicial Conduct.

13 Rollo, 21-22.

14 Applicable to lawyers in government service in the discharge of their official tasks pursuant to Canon 6 thereof.

FIRST DIVISION

G.R. No. 169241 May 2, 2006

OFFICE OF THE OMBUDSMAN, Petitioner,
vs.
PENDATUN G. LAJA and the COURT OF APPEALS, Respondents.

D E C I S I O N

YNARES-SANTIAGO, J.:

This petition for certiorari under Rule 65 of the Rules of Court assails the May 12, 2005 Resolution¹ of the Court of Appeals in CA-G.R. SP No. 00101-MIN which granted respondent Pendatun G. Laja’s prayer for the issuance of the writ of preliminary injunction conditioned upon the posting of the requisite bond, as well as the June 24, 2005 Resolution² which issued a writ of preliminary injunction enjoining the Office of the Solicitor General, Mindanao, from enforcing the April 15, 2004 Joint Decision³ and the September 27, 2004 Joint Order⁴ of the Office of the Ombudsman, Mindanao, in Case Nos. OMB-M-A-02-306-K and OMB-M-A-02-312-L. The Joint Decision and Joint Order of the Office of the Ombudsman, Mindanao, ordered the dismissal from service of respondent Laja for dishonesty, neglect of duty and grave misconduct.

The facts of the case are undisputed.

On November 18, 2002 an administrative complaint for Misconduct and Neglect of Duty⁵ was filed by the employees of the Provincial Government of Tawi-Tawi against respondent Laja, in his capacity as Provincial Treasurer, in connection with the non-remittance of their contributions to the Government Service Insurance System (GSIS) for the years 1998 to 2001 which resulted in the denial of their loan applications. Thereafter, on November 29, 2002, a similar administrative complaint⁶ for Dishonesty, Oppression and Violation of Republic Act (R.A.) No. 6713, otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees, was filed by former employees of the Provincial Government of Tawi-Tawi against said respondent in connection with the non-remittance of their GSIS contributions which resulted in the deduction of the corresponding amounts from their retirement benefits.1avvphil.net These two cases were subsequently consolidated and submitted for resolution.1avvphil.net

The Office of the Ombudsman for Mindanao proceeded to hear both cases and in a Joint Decision dated April 15, 2004 disposed of the cases, thus:

WHEREFORE, WITH THE FOREGOING PREMISES CONSIDERED, this Office finds respondent PENDATUN G. LAJA, Provincial Treasurer of Tawi-Tawi and currently Officer-In-Charge of Office of the Assistant Regional Director of the Bureau of Local Government Finance-Legaspi City, GUILTY of the administrative charges of DISHONESTY, NEGLECT OF DUTY and GRAVE MISCONDUCT pursuant to the Revised Administrative Code and Section 52, paragraph (A), sub-paragraph (1, 2 and 3) of the Uniform Rules on Administrative Cases in the Civil Service. The subject offenses being all classified as grave, respondent Laja is consequently meted the penalty of DISMISSAL FROM SERVICE, with the accessory penalties of perpetual disqualification to hold public office and cancellation of civil service eligibility, effective upon the finality of this Decision.

SO DECREED.⁷

Respondent filed a motion for reconsideration⁸ which was denied in a Joint Order dated September 27, 2004. Thus, he filed a Petition for Certiorari with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction⁹ with the Court of Appeals where the same was docketed as CA-G.R. SP No. 00101-MIN.

On March 8, 2005, the appellate court issued a Temporary Restraining Order for a period of 60 days enjoining the enforcement of the Joint Decision and required petitioner to file a comment and to show cause why a writ of preliminary injunction should not issue.

On March 18, 2005, petitioner endorsed the foregoing resolution of the appellate court to the Office of the Solicitor General (OSG) for appropriate action. Thereafter, the OSG filed an Entry of Appearance with Motion to Defer Filing of Comment¹⁰ pending receipt of the petition and its accompanying documents.

Upon receipt of the petition, the OSG filed a Manifestation and Motion dated May 16, 2005¹¹ praying that it be excused from further participation in the case on the ground that under Section 5, Rule 65 of the Rules of Court, it is the private respondents who are tasked to defend the validity of the proceedings below as well as the challenged Joint Decision dated April 15, 2004 and Joint Order dated September 27, 2004.

On April 4, 2005, counsel for private respondents in CA-G.R. SP No. 00101-MIN filed a Comment¹² praying for the dismissal of the petition on the ground of forum shopping, pointing out that Laja appealed the Joint Decision to this Court by way of a petition under Rule 45 of the Rules of Court which was denied in a Resolution dated January 12, 2005 and a motion for reconsideration thereof is still pending.

Due to the impending expiration of the 60-day temporary restraining order issued by the appellate court, Laja filed a Motion To Resolve the Prayer for the Issuance of a Writ of Preliminary Injunction and/or Extend the Lifetime of the Temporary Restraining Order.¹³

On May 12, 2005, the appellate court issued a Resolution granting the issuance of a writ of preliminary injunction on the condition that a bond of P500,000.00 Pesos be posted within five days from receipt. Upon posting of the requisite bond, the Court of Appeals issued on June 24, 2005 a Resolution issuing a writ of preliminary injunction enjoining the Office of the Solicitor General from enforcing the Joint Decision and Joint Order of the Office of the Ombudsman.

Prefatorily, respondent Laja raises procedural objections on the propriety of this proceeding pointing out that no motion for reconsideration was filed by petitioner before elevating its cause to this Court and that the petition is tardily filed.

Concededly, the settled rule is that a motion for reconsideration is a condition sine qua non for the filing of a petition for certiorari. Its purpose is to grant an opportunity for the court to correct any actual or perceived error attributed to it by the re-examination of the legal and factual circumstances of the case.¹⁴ The rule is, however, circumscribed by well-defined exceptions such as where the order is a patent nullity, as where the court a quo had no jurisdiction; where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; where, under the circumstances, a motion for reconsideration would be useless; where petitioner was deprived of due process and there is extreme urgency for relief; where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; where the proceedings in the lower court are a nullity for lack of due process; where the proceedings were ex parte or in which the petitioner had no opportunity to object; and where the issue raised is one purely of law or where public interest is involved.¹⁵

Furthermore, as is oft said the provisions of the Rules of Court should be applied with reason and liberality to promote its objective of securing a just, speedy and inexpensive disposition of every action and proceeding. Rules of procedure are used to help secure and not override substantial justice. Thus, the dismissal of an appeal on a purely technical ground is frowned upon especially if it will result in unfairness.¹⁶

In accordance with this policy, appeals tardily filed were allowed by the Court in a plethora of cases.¹⁷ Prescinding, therefore, from the foregoing, the technical objections raised by the respondent will be disregarded by the Court to get at the substantive issues raised by both parties, consistent with this Court’s inherent power to suspend the application of procedural rules when warranted, in relation to the dictum that all controversies should be resolved on their merits.

The primordial question posed is whether the Court of Appeals may enjoin petitioner from enforcing its judgment in an administrative case ordering respondent’s dismissal from the service pending the final resolution of respondent’s appeal from said verdict before the appellate tribunal.

The crux of the controversy is the effectivity or binding effect of the challenged Joint Decision. Petitioner insists that the issuance of the injunctive writ is improper because respondent does not have a vested right to hold public office and that decisions imposing administrative sanctions in administrative disciplinary cases are ‘executory’ pending appeal. Respondent, on the other hand, contends that petitioner’s authority and jurisdiction to order his dismissal is merely ‘recommendatory’ under the Constitution.

On the question of whether the assailed judgment dismissing respondent Laja from the service is ‘executory’ pending appeal, we held in Lopez v. Court of Appeals ¹⁸ that:

[O]nly orders, directives or decisions of the Office of the Ombudsman in administrative cases imposing the penalty of public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary shall be final and unappealable hence, immediately executory. In all other disciplinary cases where the penalty imposed is other than public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary, the law gives the respondent the right to appeal. In these cases, the order, directive or decision becomes final and executory only after the lapse of the period to appeal if no appeal is perfected, or after the denial of the appeal from the said order, directive or decision. It is only then that execution shall perforce issue as a matter of right. The fact that the Ombudsman Act gives parties the right to appeal from its decisions should generally carry with it the stay of these decisions pending appeal. Otherwise, the essential nature of these judgments as being appealable would be rendered nugatory.¹⁹ [Emphasis added]

Thus, the order imposing the penalty of dismissal from the service of the respondent is not immediately executory. An appeal timely filed will stay the immediate implementation of the decision.²⁰

Regarding respondent Laja’s argument that the Ombudsman’s administrative decisions are merely ‘recommendatory’, we held in Ledesma v. Court of Appeals,²¹ that the Ombudsman’s order to remove, suspend, demote, fine, censure, or prosecute an officer or employee is not merely advisory or recommendatory but is actually mandatory, thus:

We note that the proviso above qualifies the "order" "to remove, suspend, denote, fine, censure, or prosecute" an officer or employee – akin to the questioned issuances in the case at bar. That the refusal, without just cause, of any officer to comply with such an order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action, is a strong indication that the Ombudsman’s "recommendation" is not merely advisory in nature but is actually mandatory within the bounds of law. This should not be interpreted as usurpation by the Ombudsman of the authority of the head of office or any officer concerned. It has long been settled that the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense charged. By stating therefore that the Ombudsman "recommends" the action to be taken against an erring officer or employee, the provisions in the Constitution and RA 6770 intended that the implementation of the order be coursed through the proper officer, x x x.²² [Emphasis added]

All told, we sustain the grant of injunctive relief by the appellate court. The order dismissing an employee from the service, as in this case, is not immediately executory considering the pendency of the appeal. The Joint Decision dated April 15, 2004 becomes final and executory only after the denial of the appeal from said Joint Decision. It is only then that execution shall perforce issue as a matter of right.

WHEREFORE, in view of all the foregoing, the challenged Resolutions of the Court of Appeals dated May 12, 2005 and June 24, 2005 in CA-G.R. SP No. 00101-MIN are AFFIRMED and the instant petition is DISMISSED.

SO ORDERED.

CONSUELO YNARES-SANTIAGO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

ROMEO J. CALLEJO, SR. Asscociate Justice

(On Official Leave)
MINITA V. CHICO-NAZARIO
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes

¹ Rollo, pp. 34-35. Penned by Associate Justice Romulo V. Borja and concurred in by Associate Justices Rodrigo F. Lim, Jr. and Normandie B. Pizarro.

² Id. at 30-31.

³ Id. at 61-81.

⁴ Id. at 108-118.

⁵Docketed as OMB-M-A-02-306-K.

⁶ Docketed as OMB-M-A-02-312-L.

⁷ Rollo, p. 79.

⁸ Id., at 82-97.

⁹ Id. at 37-60.

¹⁰ Id. at 167-169.

¹¹ Id at 170-172.

¹² Id.at 173-175.

¹³Id. at 176-179.

¹⁴Estate of Salvador Serra Serra v. Heirs of Primitivo Hernaez, G.R. No. 142913, August 9, 2005, 466 SCRA 120, 127.

¹⁵ Tan v. Court of Appeals, 341 Phil. 570, 577-578 (1997).

¹⁶Benguet Corporation v. Cordillera Caraballo Mission, Inc., G.R. No. 155343, September 2, 2005, 469 SCRA 381, 385-386.

¹⁷See Postigo. v. Philippine Tuberculosis Society, Inc. G.R. No. 155146, January 24, 2006; Philippine Ports Authority v. Sargasso Construction and Development Corp., G.R. No. 146478, July 30, 2004, 435 SCRA 512, 527; Sacdalan v. Court of Appeals, G.R. No. 128967, May 20, 2004, 428 SCRA 586, 597; Development Bank of the Philippines v. Court of Appeals, 411 Phil. 121, 135 (2001).

¹⁸ 438 Phil. 351 (2002).

¹⁹ Id. at 359-360.

²⁰ Lapid v. Court of Appeals, 390 Phil. 236, 247 (2000).

²¹ 465 Phil. 437 (2005).

²² Id. at 449-450.